The clarion., 1887-04-27
SUPREME COURT CASES
Reported for The Clarion BY w. H. Harper
Attorney-st-Lsw, jackson. Miss.
October Term-Isse.

GAsTRELL,
PHILLIPS.
Appeal from the Circuit Court of Will
kinson county. Hon. J. B. Chrisman,
Judge.
G. P. Nelson and J. H. Jones, for the
appellant.
Nugent & Melville, for the appellee.
Phillips, Marshall & Co. brought this
action of replevin against II. VI. Gas
trell to recover possession of certain tim
ber alleged to have been cut from the
land of the former by the latter.
A motion for a continuance was made
by defendant. He filed an affidavit in
support of his motion in which he set
out that he could not go to trial safely
without the testimony of W. II. Gibbs
and John Hill, by whom he could prove
| that the land from which the timber
was cut, was in 1881 held by the State
as swamp and overhowed lands; that
plaintiff in 1881 employed these two
witnesses to purchase from the State
certain of its swamp and overiowed
lands; that in order to evade the act of
| February, 1887, which permitted each
person to buy only 240 acres of such
| lands, that these witnesses acting for plain
| tiff secured persons to sign blank appIca-
| tions for such land, which were after
wards filled out by these two agents of
plaintiff, and money was furnished by
plaintiff TO purchase the lands, and when
patents were issued thereon, the respec-
tive patentees made quit-claim deeds to
plaintiffs, and that in this way plaintiffs
acquired the land from which the tim
ber in question was cut. The court be
low refused to continue the case on the
ground that if the evidence set out were
produced it would not be admissible IN
this action.
On the trial, one Brown, who had
been duly subpenaed from both Ad-
ans and Wilkinson county, failed to APP
pear. 1t was shown that he had testified
in this case at previous term and on a
former trial, and since had removed tC
Louisiana. Thereupon the court per-
mitted plaintiffs to prove what Brown
had testified on the former trial, over the
objections of defendant.
The jury found for the plaintiff, and
the defendant appealed
CAMPBELL, J., delivered the opinion ol
the Court.
We approve the ruling of the court il
refusing a continuance, for the proposed
evidence would not have been available
if offered. A void patent may be as
sailed and vacated at law in any contro
2 versy involving it, but one merely void
able cannot be collaterally attacked
Whatever may be said of the patent
proposed to be attacked they are no
void, and cannot be attacked collater
s allv.
t We would ike to put an end to thi
e case, but disapprove the admission o
+ evidence of what the witness Brown tes
titled to on a former trial. He wa
shown to have removed to Louisiana
and as his deposition could be taken, !
a was inadmissible to prove what he test
/ fed on q former trial. We are aware o
Q the contrariety Of opinion on this sub
, iect, and familiar with the discussion
i has evoked, bat side with those VIII
deny that an absent witness who's
r whereabouts is known, Is to be treate
n as dead so as to let in evidence of hi
/ former testimony. We have exclude
such evidence in criminal cases, and a
reason exists for different rule in civ
y cases. Indeed, a stronger reason exist
r for admitting it in criminal cases tina
in civil because of the inadmissibilit
q of dispositions in criminal cases.
. might be wise for the Legislature
II provide for the admission of such test
l. mony in both classes of cases, but unit
y such enactment, we think it inadmiss
Il BILE.
al Reversed and remanded